United States v. Terry

United States District Court, D. Arizona

May 31, 2017

United States of America, Plaintiff,v.Derek Lamont Terry, Defendant.

ORDER

Cindy
K. Jorgenson United States District Judge

On
April 20, 2017, Magistrate Judge Eric J. Markovich issued a
Report and Recommendation (“R & R”) (Doc.
225) in which he recommended that the Motion to Suppress
Statements and the Results of the Government's Search of
his Cellular Telephone (Doc. 103) filed by Derek Lamont Terry
(“Terry”) be denied. Terry has filed an objection
(Doc. 230) and the government has filed a response (Doc.
238). Additionally, the magistrate judge discussed and made
recommendations regarding the issues raised in the Motion to
Suppress Evidence Seized Following Illegal Traffic Stop (Doc.
125) filed by co-defendant Dana Renaye Glenn
(“Glenn”). As Terry joined in this motion (Doc.
153), the magistrate judge discussed the issues therein, and
the parties address these issues in the filings, the Court
accepts the R & R as also making recommendations as to
those issues; the Court also accepts Terry's objections
as to those issues.

The
Court has reviewed the Motion to Suppress Defendant's
Statements and the Results of the Government's Search of
his Cellular Telephone (Doc. 103), the response (Doc. 129),
the Motion to Suppress Evidence Seized Following Illegal
Traffic Stop (Doc. 125), the response (Doc. 151) the Joinder
(Doc. 153), the Government's Summation Re: Motion to
Suppress Hearing April 4, 2017 (Doc. 224), the R & R
(Doc. 225), the exhibits, the transcript of the hearing held
before the magistrate judge (Doc. 220), the objection (Doc.
230), and the response (Doc. 238).

The
standard of review that is applied to a magistrate
judge's report and recommendation is dependent upon
whether a party files objections - the Court need not review
portions of a report to which a party does not object.
Thomas v. Arn, 474 U.S. 140, 150 (1985). However,
the Court must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with
instruction.” Fed.R.Civ.P. 72(b)(3); see also
28 U.S.C. § 636(b)(1) (“A judge of the court shall
make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made.”).

Report
and Recommendation - Factual Background

Terry
points out the R & R fails to include any reference to
the dash camera video and argues the dash camera video is the
best objective evidence to review the stop of Terry. However,
the magistrate judge included multiple references to the dash
camera in his factual summary. Indeed, the magistrate judge
summarized what the video and audio recordings showed.
See R & R, pp. 4-5.

Terry
further argues that “[a] review of the dash cam shows
Ms. Glenn traveling in the median lane with two large
semi-trucks several hundred yards in front of her and
virtually out of range from the dash cam video.”
Objection, pp. 1-2. The Court disagrees with Terry's
summary. The beginning of the dash camera video shows a black
Toyota Camry passing two semi-trailer trucks, then pulling
over to the side of the road. Furthermore, the testimony of
Trooper [Keith Duckett (“Trooper Duckett”)]
indicates he observed a black Toyota Camry following a
“tractor-trailer, 18 wheeler . . . at a distance of
approximately one second behind the commercial vehicle[,
]” while the NHTSA standard requires four to five
seconds.” TR p. 17.[1] Trooper Duckett made this observation
while his vehicle was parked perpendicular to the road and
traffic. The dash camera video was only activated after the
trooper waited for traffic to clear, pulled out onto the
interstate from the side of the road, and initiated the
lights of the patrol vehicle; Trooper Duckett testified that
when he initiated his lights, the dash camera beeped at him,
so he knew it was turned on. TR, p. 20. In other words,
Terry's argument that, if Trooper Duckett was credible,
the dash camera footage would show Glenn following as closely
as the trooper's testimony indicated, is not well-taken.
In light of when the dash camera video began, the testimony
as to how closely Glenn was following the semitrailer truck
while Trooper Duckett was parked perpendicular to the traffic
cannot be confirmed or contradicted by the dash camera video.

Terry
objects to the R & R's description of the clothing
worn by the females in the vehicle: Terry asserts “the
body/dash cam [video] does not reveal clothing one would
think indicative of prostitution or uncomfortable in
anyway.” Objection, p. 3. The Court's review of the
dash camera video, however, belies this assertion. The
clothing worn by at least two of the women (and arguably the
third) could fairly be said to be indicative of prostitution,
especially in light of the time of day during which the
articles of clothing were being worn. Further, the Court
agrees with the magistrate judge that the females were not
dressed in comfortable clothing for the lengthy road trip.

Terry
also disputes the magistrate judge's statement
recognizing that Jade appeared nervous to Trooper Duckett and
that Sergeant Joshua Wilhem (“Sergeant Wilhelm”)
told Trooper Duckett that Jade was on the verge of tears when
speaking with Sergeant Wilhelm. Terry asserts the body camera
video shows otherwise. The Court's review of the body
camera footage leads to a conclusion that, although it could
simply have been because of the law enforcement contact, it
was reasonable for the trooper to conclude Jade appeared
nervous. Indeed, during the encounter with Trooper Duckett,
Jade did not dispute the trooper's statements that she
was shaking and that she appeared nervous. The Court does not
have any basis to conclude the officers were not truthfully
summarizing their opinions of what they observed. The Court
adopts this portion of the R & R.

Terry
objects to legal conclusions based on factual findings
reached by the magistrate judge, but makes no further
specific objections to the factual summary included in the
RR. The Court adopts the factual summary included in the R
& R.

Initial
Stop - Reasonable Suspicion

Terry
argues the dash camera video does not support the magistrate
judge's conclusion that the initial traffic stop was
lawful. Rather, Terry asserts, that “[c]ommon sense and
knowledge of the ways of the world demonstrate that if []
Glenn was following as closely as Trooper Duckett indicated,
his dash cam would have captured images of [] Glenn following
too closely.” Objection, p. 2. However, the Court has
concluded that the dash camera neither confirms nor
contradicts the assertion by Trooper Duckett that the Toyota
Camry was following the semi-trailer truck too closely when
it passed his location when he was parked perpendicular to
the traffic.

The
magistrate judge recognized that the testimony of Trooper
Duckett was contradicted by Glenn. Glenn testified she was
not speeding, was traveling two car lengths behind the
semi-trailer truck, and she was driving carefully through the
construction zone. However, Glenn conceded she has never had
a driver's license, has never applied for a driver's
license and she has never taken a road test or a driving
course. Glenn also admitted that she had lied to Trooper
Duckett. Additionally, she acknowledged she engaged in
“three way” phone calls, which are prohibited by
the detention facility, with Terry and discussed the facts of
this case many times with him.

This
Court agrees with the conclusions of the magistrate judge.
Trooper Duckett's testimony is credible. He was in a
position to focus on the traffic and was in a position to
observe traffic infractions. While a driver may not be
knowledgeable about all traffic laws or could be distracted,
the trooper was in a position to best assess if a traffic
violation occurred.

Additionally,
when Trooper Duckett informed Glenn why she was being
stopped, she did not dispute the trooper's assertion that
she had been following too closely. In fact, it is more
likely that, when Glenn noticed Trooper Duckett in the
construction zone, her focus was on the speed of the vehicle.
Additionally, the Court agrees with the summary of the
magistrate judge assessing the credibility of Glenn:

Finally, Ms. Glenn's credibility is also undercut by the
following facts: (1) she has never had a driver's
license; (2) she has never taken a road test or driving
course where she would learn what is a safe distance between
vehicles; (3) she gave Trooper Duckett a false name so he
would not find out she did not have a driver's license;
(4) she testified that she could not recall what direction
she was traveling on June 8, 2016; and (5) she admitted that
she has ...

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